BHOLA RAM LIERI Vs. PEARI DEVI

JUDGEMENT

(1.) The suit out of which this appeal arises was for the recovery of possession of two holdings situated within the Madhupur Municipality, with mesne profits from the 2nd September 1952. As the suit was decreed, the defendants have preferred this appeal.

(2.) One Padarath Koeri had four sons, of whom two died long ago without leaving any issue or widow. Of the remaining two, Hira Koeri died leaving a son, Bhola Koeri, defendant No. 1, and defendants 2 to 4 are sons of Bhola Koeri. The second son of Padaralh Koeri named Sheodutt executed a will on the 4th February 1936 in respect of the houses standing on these holdings in favour of Harihar Prasad, plaintiff No. 3 son of the brother of Sheodutt's wife, Musammat Kabutari (defendant No. 5), and also in favour of Durga Prasad (plaintiff No. 4), son of Sheodutt's daughter's daughter. On the 5th June 1948, Sheodutt superseded the will by executing a deed of gift in respect of these very holdings in favour of plaintiffs 1 and 2 who are, respectively, the wives of plaintiffs 3 and 4. These two donees got their names recorded in the records of the Ghatwal, who was the landlord, and also in the records of the Municipality. Sheodutt died on the 8th August 1952; and Musammat Kabutari died in 1959 during the pendency of this appeal. In September 1952, there was a dispute regarding possession between the parties. This resulted in a proceeding under Section 144 of the Criminal Procedure Code, which was converted into a proceeding under Section 145 of the Code. The Magistrate upheld the possession of defendants 1 and 4 over an area of about 18 kathas out of the two holdings and that area including the constructions thereon is the disputed property in suit. The plaintiffs went up in revision against this order, but the application in revision was rejected by the Additional District Magistrate of the Santhal parganas on the 30th December 1953.

(3.) The case of the plaintiffs was that Sheodutt was separate in all respects from his brothers and their descendants and, as he had love and affection for the plaintiffs, he made a gift, of the pro-petty in favour of plaintiffs 1 and 2 and he completely divested himself of the gifted property. But they were forcibly dispossessed from the disputed area by defendants 1 to 4 on the 2nd September 1952; and, as the proceeding under Section 145 was decided against them, they instituted the suit on the 29th November 1954. Defendant No. 5, Mussammat Kabutari, supported the case of the plaintiffs in her written statement dated the 14th February 1955.